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| POLITICAL FALLOUT | |
 December 11, 2000  |
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Three
political columnists explore the possible political fallout of George
W. Bush vs. Albert Gore, Jr., the case that could decide the presidency.
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JIM LEHRER: Finally, the thoughts of Oliphant, Brooks, and Broder: Tom Oliphant of the Boston Globe, David Brooks of the Weekly Standard, and David Broder of the Washington Post. |
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| Looking for a solution | ||||||||||||||||||||
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David Brooks, what is your nonlegal analysis of what happened today before the U.S. Supreme Court?
JIM LEHRER: Your instincts watching them today, which way you think they're going to go? I don't mean from a legal standpoint -- you know, just watching them. DAVID BROOKS: I really don't know. I thought beforehand that it would be the stay. But watching the focus on the standards, and I think there's an emotional desire to hand this, have this end with the voters, which would be this modified recount. But as some of the law professors said, that present great practical difficulties, who runs it, how long does it take, what do you do with the Broward County results that were certified. So there are practical problems. So I'm sure the court and most people would want it to end with the voters with some sort of modified --
TOM OLIPHANT: Well, there's no question that Dave Brooks is right that what politicians heard while that argument was going on, and I was struck by it was Bush supporters as well as Gore supporters I talked to this afternoon, focused in on what they describe as an effort to come up with some way to resume counting under some kind of standard that could apply throughout the state, perhaps not as specific as David just mentioned, but nonetheless a standard. This gave the Gore people the hope that they took from the oral argument, and I think it gave the Bush people some fears that this accounting might resume, and I think as a result you're going to see them pushing even harder by Wednesday for a vote in the Florida legislature. JIM LEHRER: But for the vote to resume and finish by December 12, they would literally have to almost start tonight, wouldn't they? TOM OLIPHANT: Well, yes, but I think there's something else that came threw today to laymen, besides hearing Ted Olson say the Latin phrase sub silencio four times, I have no idea what he was talking about -- JIM LEHRER: I'll tell you after the program.
JIM LEHRER: Safe harbor? Quick -- TOM OLIPHANT: Finishing this by December 12 with a certified winner, who's accepted so that -- JIM LEHRER: In other words, the certification that is now on the record by the secretary of state of Florida would just remain what it is and we'd move on? TOM OLIPHANT: Or it might be altered by the results. JIM LEHRER: Right. By the results. TOM OLIPHANT: But that would protect it from him. But I think now one has to think realistically that you wouldn't have that safe harbor and we'd be talking about December 18 as a possibility anyway. JIM LEHRER: David, what do the politicians you talked to -- or what do you think about this, politically?
JIM LEHRER: So, but in order for that to happen, David, the minority, in other words the four, "liberals" would have to pick up Kennedy and O'Connor to get something like that to go back to the, back to Florida, right? DAVID BRODER: Or perhaps they could pick up everybody else with the plausible theory this is going to get it out of our hands, it's going to give Gore what he wants, a count, and it's going to give Bush what he wants, a very strict standard for defining what's a vote. |
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| Acceptance of a Supreme Court decision | ||||||||||||||||||||
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JIM LEHRER: But, David Brooks, there's been speculation and all kinds of commentary over the weekend that maybe, just maybe the United States Supreme Court by going ahead and resolving it tonight, tomorrow or whatever, could, they're the one institution where people that they would accept this. Do you agree with that? DAVID BROOKS: Well, the polls show they do. Gallup did a poll, who do you trust to handle this, 61 percent said the U.S. Supreme Court, 17 percent said the U.S. Congress, 9 percent say the Florida legislature, 7 percent say the Florida Supreme Court. JIM LEHRER: Don't go any further! DAVID BROOKS: All of us were under the star. So the people do trust the Florida State Supreme Court, and there is that argument -- I mean the U.S. Supreme Court, and I'm sure there would be some defer deference to that no matter who won. I'm sure both parties would feel deference. But I'm not sure you could get nine justices to want to do this. I think you could get seven. And I was struck by the way Rehnquist kept focusing on the standards. But you can imagine -- somebody told me -- you can imagine the Supreme Court conference where they're talking about what standards should be used and then Scalia pipes up and says you guys are just legislating just like those guys in Tallahassee, so you can imagine a scenario of seven to two, where the hard core right wingers are isolated. JIM LEHRER: Tom. Yeah, go ahead.
JIM LEHRER: Let me be direct to you, Tom. Let's say that they stay with 5-4, and then the next 24 hours they affirm Florida, George W. Bush becomes president as a result of that. Will the majority of the American people, I mean, I don't ask you to speak for the majority, but is your reading that they could get away with that -- TOM OLIPHANT: Yes, it is. JIM LEHRER: -- and not become another, be seen as another bunch of political hacks making a decision? TOM OLIPHANT: Because I think the word legitimacy is being tossed around too loosely here. I don't think there would be a question about legality, certainly, and none about legitimacy. I think most people would accept it. I think the problem would come with a word that Justice Scalia raised in his words over the weekend, and that is the word "cloud". If this were neat and clean with a broader consensus behind it, you wouldn't even have a cloud, I think, over Governor Bush's ascension to the presidency. But because you have cut this count off, because there were the pictures of the counting stopping, I think that, and because of Scalia's frankly somewhat intemperate language -- JIM LEHRER: He essentially said it was over. TOM OLIPHANT: That's right -- that the cloud he speaks of and is trying to prevent would actually get bigger and blacker. |
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| The meaning of a 5-4 decision | ||||||||||||||||||||
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DAVID BROOKS: I talked to a Republican senator who would not be quoted by name this afternoon who said a 5-4, following the Scalia pronouncement, would be a terrible credibility problem, not only for the Supreme Court but for the Republican Party, he said. He said suppose that this stands and that one of the informal counts that will take place in Florida a month from now by a news organization, by the Miami Herald, says that really if they had counted it, clearly Gore would have gotten more votes. He said that is setting us up for a terrible political reprisal. And I think that's another reason why this court may not want to make the final decision. JIM LEHRER: David, how do you read that? Do you think the Supreme Court would be cognizant of that? DAVID BROOKS: They'd be cognizant of it. I'm not sure I agree with that. I'm not sure there will ever be a objective count, even the vaunted Miami Herald. Nobody will do it. The conservatives will go down there. The liberals will go down there. They'll all have their own counts, I don't think there will ever be an objective truth. Whether the court will be harmed, I think it's already been harmed. JIM LEHRER: You think it's already been harmed? DAVID BROOKS: I think the court system has been harmed, I think when the Florida Supreme Court inserted themselves into the political process the cloud was forming, and whether it's a cloud over Tallahassee or over Washington, there was a cloud. I was thinking about college students, what do they know about politics in their lives, they know the Lewinsky scandal about the presidency. They know this about the judiciary. Well, that's not a very enticing picture. JIM LEHRER: David, to buy your theory you have to buy the fact that it's impossible for a Republican, or a Democrat, appointed to any kind of judiciary to be anything other than a Republican or Democrat when it comes to ruling on a -- DAVID BROOKS: No, I don't think they're political hacks, I don't think they root for one candidate or another, but I do think they have philosophies. JIM LEHRER: That's how they got appointed in the first place. DAVID BROOKS: And it's their philosophies that cause these splits, rather than narrow, partisan politics. But when you get into -- when you insert the court system into this partisan politics, well, your ratings are going to go down to where the political people are. JIM LEHRER: Speaking of ratings, we have to go. Thank you all three very much. |
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DAVID
BROOKS: That we've got two likely outcomes, again emphasizing my nonlegal
training. One that we get a 5-4 ruling, as the stay was, and then we
call ought the realtors. Gore moves out, Cheney moves in, Bush moves
up from Texas. The second one which I think a lot of political people
were looking at, as the law professors just were, were focused on the
standards. Does this mean the court is going to split the baby and say
the Florida Supreme Court overreached, we want them to try again, and
count again? So we would go back to Florida with standards that are
stricter than what the count before, go back with non-dimpled chads,
just punched-through chads and do a count on sort of a "Palm Beach
standard" which is a tighter standard than we had in Broward County
and some other places.
JIM
LEHRER: Rather than a 5-4 or any vote of the Supreme Court plaque in
Florida. Tom, how did you read what happened there today? 
TOM
OLIPHANT: Thank you. -- is that in addition to trying to come up with
the standard, it seemed to me that politicians are also feeling that
December 12, the safe harbor, is just not probably going to be there
realistically.
DAVID
BRODER: Let me use an elegant analogy. I think the Supreme Court is
playing dodge ball. I think they do not want this case and this election
to end in their court. And the way that they can avoid that is by finding
some device to send it back to Florida. There are two things I think
that the people I've talked to, and again let me emphasize I'm not a
lawyer, came away with. One, that the traditional fear of making a huge
decision in its import on the basis of a 5-4 majority; the other, that
this court seemed to many of the people I talked to not to be eager
to go into history as the Supreme Court that chose a president. And
the only way they can avoid that is by sending it back to Florida. I
thought when Justice O'Connor asked Mr. Boies why wouldn't the standard
be the instruction that was on the wall of the polling places as to
how to be sure that your vote had counted, Mr. Boies wanted a more liberal
standard. But it suggested to me that perhaps there was a way they could
say resume the counting, and count the votes that were executed according
to the instructions that were posted in the Florida polling places.
TOM
OLIPHANT: I was just going to say the major reason that what we're talking
about, a remand with instructions may occur, I think can be summarized
in two words inside the court, Antonin Scalia. The concurrence that
he issued over the weekend that accompanied the stay after the dissent
was made, whether you agree with or not, it was a polarizing moment
among Democrats, Republicans, liberals, conservatives and all the right.
I think it showed the Supreme Court has walked into this thicket, but
so far its contributions have either been minuscule, last week, or polarizing
this past weekend. 
JIM
LEHRER: David, how do you read 5-4 and how it would go down with the
country? 